The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This evening the Supreme Court refused to lift a stay of a lower court order declaring the Center for Disease Control's eviction moratorium to be unlawful in Alabama Association of Realtors v. Department of Health and Human Services. Only four justices voted to grant the application to lift the stay: Justices Thomas, Alito, Gorsuch and Barrett would have lifted the stay. That means the Chief Justice and Justices Breyer, Sotomayor, Kagan, and Kavanaugh wanted the stay to remain in place. My co-blogger Ilya Somin previously blogged on this case here.
While this is a temporary victory for the CDC's temporary moratorium, it may not last for long. Justice Kavanaugh issued this opinion concurring in the denial of the application, noting that he believes the CDC's action lacked congressional authorization:
I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.
This brief opinion echoes Justice Kavanaugh's prior statements that courts should be reluctant to conclude agencies have broad regulatory authority without clear authorization from Congress. Congress clearly delegated authority to the CDC to address the spread of contagious disease, but it's not self-evident that an eviction moratorium can be properly characterized as such a measure (whether or not it could be justified on other grounds). Accordingly, Justice Kavanaugh has made clear that if there is to be such a moratorium beyond next month, that will require Congress to act.
Justice Kavanaugh's opinion also illustrates how a focus on the baseline question of whether Congress has, in fact, delegated the authority at issue to a federal agency may help address nondelegation concerns. I discussed this approach in this post and this forthcoming book chapter.